4/22/2011

[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]

Update: Via Volokh we get this brief from the ACLU. The law element has been well-covered, but they bring expertise of local procedure.

Basically this is a special process by which a person can be accused of planning to breach the peace. And if they plan to breach the peace, they can be charged a bond to cover the estimated costs of such breach. So what we have is a full-on Minority Report situation, where we are prosecuting him not for what he has done, but what he might do. Indeed, more precisely we are prosecuting him based on what others might do if he does something that he might not himself do. That explains, procedurally what was going on, but it doesn’t make it any less appalling (or change my analysis significantly). It is also prior restraint of the most appalling form and bluntly, will not withstand appeal. It might take the Supreme Court to do it, but this law will be rendered a dead letter before this is over.

Incidentally, in response something Allah (the blogger) said, the Fighting Words doctrine is uncertain as constitutional law these days. For instance, in Texas v. Johnson the incitement of others to breach the peace, the so-called heckler’s veto, was treated under the more stringent Brandenburg standard (discussed here). That might be the true standard these days.

The only time the Fighting Words Doctrine allowed a person to be restrained before the Supreme Court appears to be Chaplinsky v. New Hampshire. In that case a Jehovah’s Witness told a cop as he was being arrested that

`You are a God damned racketeer’ and `a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,’

It is unthinkable that a person could be prosecuted for saying that today. Indeed if that was the case, we could arrest virtually the entirety of Indymedia and the Democratic Underground. So I think the Fighting Words Doctrine might very well be a dead letter.

Update (II): Jones has been released. I will write more later but this article fills in many of the blanks.

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Well, as a temporary conclusion to a story I have followed all day, Pastor Jones is in jail tonight. As you might recall from previous posts, he wished to protest outside a mosque in Dearborn, Michigan. The city attempted to impose a “peace bond” on him charging him for anticipated security expenses. As I have stated in a prior post, that is flat-out unconstitutional, because it would vary according to how controversial the speech would be and thus would be a content-based restriction. So they went to a jury trial and then this happened:

The stunning development came after a Dearborn jury sided with prosecutors, ruling that Terry Jones and Wayne Sapp would breach the peace if they rallied at the Islamic Center of America in Dearborn.

Pastor Sapp is famous for being the man who actually burned the Koran, under Jones’ direction.

Prosecutors asked Judge Mark Somers for $45,000 bond. Somers then set
bond at $1 each for the two pastors.

They refused to pay. And Somers ordered them remanded to jail.

This frankly doesn’t compute with me. My understanding is that the posture of the trial was to figure out if they had to pay to get a permit. If they refused to pay, they simply didn’t get a permit and then they had to decide whether to protest anyway. So something is not adding up, here.

Of course I have long said that legal reporting is very poor and maybe there is something crucially missing in the understanding of the trial. For instance, Eugene Volokh seems to think that their actual freedom was at stake.

Now it may be possible to prosecute them under some theory of attempted protest without a permit, or conspiracy to do the same, but really, truthfully, they should have waited until they were closer to actually engaging in the forbidden act.

Was that legal? Well, this is where the difference between an as-applied challenge and a facial or overbreadth challenge becomes relevant. Most of the time a statute is only unconstitutional if it allows the government to do an unconstitutional thing and then the government attempts to do that unconstitutional act. But in the area of the First Amendment (and abortion) there is a doctrine called the “overbreadth doctrine” which says that even if the restriction in this case is Constitutional as applied, because the statute could be applied in an unconstitutional way in the future, it is unconstitutional. That is because in part that the mere existence of an unconstitutional aw would reduce speech because many are not willing to do what Jones did—go to jail just to challenge the law. The overbreadth doctrine, therefore, is designed to combat this “chilling effect.”

Applied here, I think that if the statute set a $1 flat fee for all permits of this variety, then I think that statute would be unconstitutional. But the problem is that the statute could vary significantly and apparently varies directly in respect to the estimate cost of security, which in turn is based on how controversial the speech is expected to be. And as I said before, black letter law says that is a content-based regulation and thus impermissible under the First Amendment. After all, it is plainly obvious that a man planning to burn a King James Bible would be unlikely to face such resistance.

So tonight Pastor Jones is going to be in jail, I suppose. Perhaps there, like Martin Luther King, Jr., he will write A Letter From A Dearborn Jail. Those who disapprove of his message might consider it gross to compare him to Dr. King, but in fact the bare text of Dr. King’s letter reveals a strong parallel:

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

So like Dr. King, Jones refused to pay a permit fee for his protest. And likewise Jones followed Dr. King’s rule for open, loving defiance of the law:

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law

And just as Dr. King said that an unjust law is no law at all, it is much simpler for Pastor Jones to say that an unconstitutional law is no law at all; that is indeed the doctrine of Marbury v. Madison.

And you might still say that given the almost-saintly status that Dr. King enjoys among the American people that it is a little obscene to give Pastor Jones that status. I admit I have made no great study of Pastor Jones as a person, or his opinions, because I consider it profoundly irrelevant to the discussion. But that being said, if you don’t like Jones’ message you should be infuriated by the actions of the Michigan authorities tonight. If they had done nothing Jones would have probably done his protest, and more than likely there would have been at worst a few heated words. And then two weeks later everyone would have forgotten.

Instead their actions have thrown a spotlight on Dearborn’s problem with freedom, and put a megaphone in Pastor Jones’ hands. They have forced people who otherwise would not have supported the man to consider him a sympathetic figure. And all on the theory that apparently Muslims are uniquely incapable of controlling their anger when offended.

Yeah, Pastor Jones is in jail tonight, but I suspect that before the bailiff took him into custody, he thought, whatever you do, don’t throw me in the briar patch…

Michigan law boy Somers really shouldn’t be in that job if he values liberty and freedom so lightly but he did slap the dork prosecutors upside the head by setting the bond at a buck I guess. That might be the best you can hope for in Michigan.

For a while now, following the Rev. Jones opera, I’ve been wondering if he’s pursuing a course somewhat analogous to John Brown’s visit to Harper’s Ferry, not so much in the inflicting violence sense but in the sense that most of America seriously needs some kind of wake-up call about what’s really in the Koran and what Muslims do based on it.

It’s o.k. if the Nazis hold rallies on account of they have the right of freedom of assembly or something, but it’s not o.k. for me to burn a copy of Mein Kampf, ’cause the Nazis might get offended if I burn the words of their prophet, and then they’d start getting all weepy and stuff.

I thought the bond they asked for was arbitrary and excessive, and obviously designed to silence them. But I didn’t think it was unreasonable for people organizing a rally (as opposed to simply standing on a street corner and speaking) to pay a standard fee for the permits to cover the expected ordinary expenses of the city in cleaning up and policing a rally.

So (realising the story has a lot of holes in it) I don’t get them turning down the judge’s ruling that they should pay $1 each for the bond for the permit. I guess I just didn’t see the bond itself being a free speech issue, given they were organizing a rally and asking for a permit which gives them use of a specific space for specific time (like renting the street).

the angry muslims would be enjoying the tasty churros and those yogurt drinks they like – the mint yogurt ones where they add salt and pepper and shake it up before they drink it and then they make that Xena sound

So under this legal theory could a Democrat area like Chicago or San Francisco arrest someone for putting a Republican sign in their yard or on their car because Democrats and Union thugs are known to commit violence in response? Doesn’t this put the Brownshirts in charge anywhere the Democrats hold authority?

Machinist – I’m not feeling much difference. I put a conservative bumper sticker on my car in my hood, my car gets keyed or the windows get broken. The libs can’t control themselves. Totalitarians, the lot of them.

Jones and Sapp were tried on the likelihood they would breach the peace if they went ahead with a planned protest against radical Islam at Islamic Center of America on Ford Road.

Jurors began deliberations about 3:30 p.m, after testimony and arguments that started at 8 a.m.The jury came back once into the courtroom this afternoon, after sending two notes to the judge.

One requested aerial photograps of the proposed protest ground in front of Islamic Center of America, as well as all death threats and emails recieved by Jones; the other asked for a copy of the law the jurors are to use to reach a verdict.

Somers told both sides that it is not his practice to provide copies of laws during deliberations, and asked permission to call back the jury to re-read the law and directions. Both sides agreed.

Siding with prosecution arguments that said past actions showed that a Jones and Co. protest would likey turn violent, jurors found that the pastor and his associate were likely to breach the peace.

The verdict came about 6:30 p.m., and after a short recess, Somers set the bond fee and one other condition of the bond: Jones and his followers are not allowed to step foot on the public property in front of Islamic Center of America for three years, unless Islamic officials confer and consent to allowing that to happen.

Jones and Sapp refused and Somers remanded them to custody.

“This case is about whether the conduct of the defendants, considering all the circumstances, is likely to breach the peace,” said Assistant Wayne County Prosecutor Robert Moran in his closing arguments.

The trial comes exactly one week after the Wayne County prosecutor filed a complaint to prevent criminal acts against Jones and his followers. The prosecutor’s complaint was filed in response to Jones’ demonstration against Sharia and jihad planned for 5 p.m. today in front of Dearborn’s Islamic Center of America, the largest mosque in North America. Continued…

Jones is as nutty as a fruitcake, but he has the right to speak. No permit is ever required to speak in public.

Jones planned to have a rally which might disrupt sidewalk and/or street traffic due to its proposed location, so requiring a permit is fine as far as that goes.

However, using past lawful speech to deny a future permit based on the particulars of the previous speech is not only regulating content, but even imagined content, and effectively penalizing Jones for past lawful behavior – in another jurisdiction. This just cannot be constitutional in the United States.

Guy burns a Koran and people on this blog call him a “national hero.” If that isn’t a campaign of hate, nothing is.
Nonetheless, it’s wrong to jail the guy or to harass him with permit requirements. The more he’s allowed to expose himself to the public, the quicker Americans will see what the campaign of hate against Muslims is all about and the quicker they’ll reject it.
Jail is indeed this retard’s “briar patch.” He got exactly what he wanted out of it…

1) If ever there were grounds for jury nullification, this case has them in spades (er, something).

2) If only Boehner had the stones that Jones does to tell the PC crowd, and the “moderate” crowd what they can do with the debt ceiling, Obamacare, and the Dept. of Education (among others) – and backed his words with action.

I’m not at all surprised that a Dearborn, Michigan jury would agree with the prosecutor. I used to travel to Dearborn regularly for work, and believe me, the great majority of the inhabitants of Dearborn, Michigan are very strict, fundamentalist Muslims. Burqas are everywhere, and Arabic signs are everywhere – of course they would decide against a non-Muslim.

I remember how shocked I was the first time I went to their local mall – all the pricing signs were in Arabic, with English in a very small font under them. It’s like going to a foreign country.

This is the fifth article I read on this situation this morning. It is, strangely, the first one which specifically points out that he got in trouble *for something he didn’t even do.* It’s not merely about restraint of speech when you can be punished despite the fact that your permit has been denied.

Beth, as a 15+ year resident of Dearborn, I can assure you that the ‘great majority’ of Dearborn residents are not fundametalist muslims.

In fact about 30% of the population is Arab and of those the majority are Christian. Please get your facts straight.

The Westboro baptist church came here in November, and protested in the exact same spot that Jones wants to (public property) and they were saying things much more offensive than Jones was planning to. The held signs that said ‘Mohammed is a Pedophile’ and ‘Imam rapes chidren’. About 30 counter protesters showed up. They stayed about30 minutes and left. No riots or mayhem ensued.

The real jackass in this whole thing is the mayor, who decided to write a silly letter to the Pastor and cc’d the media, all for his own self promoting purposes and as a result the city will get sued at a time when it’s deeply underwater. Good job Jack!

Jones and Sapp were planning to protest Sharia law, jihad, a document that calls for murdering non-believers? They weren’t intending to burn American flags or the Bible? What kind of insidious extremists are they? Jail them and leave them there!

At the Islamic Center, a cheer went through the crowd of 100 after police announced the jailing.

“That’s what should happen when people say they are going to break the law,” said Neda Kardri, 29, of Dearborn.

Is this really the standard Ms. Kardri wants upheld? Just saying one is going to break the law should be enough to arrest and prosecute someone? Ms. Kardri needs to be careful of what she wishes for because if this were the standard, then every time a Muslim goes onto a website and so much as whispers a desire to blow up a building or kill Christians, his door can be broken down and he can be hauled off to prison and prosecuted.

“so does it sound kinda like Michigan has their dumb Zimbabwe-type laws and this poor judge monkey has to enforce them whether he likes them or not?” Mr. Happypappy

Liberal judges don’t have a problem with striking down anti-abortion laws, anti-gay marriage laws, etc., as unconstitutional. So, to answer your question, no they don’t have to follow the law if it violates the constitution.

They wanted to make an example out of him but instead he will just garner more support. I do not agree with burning books but good lord. It is a just a BOOK. There is something wrong in our society when we see more value in paper than the lives of our fellow human beings.

Taking the idea of the imposition of a “peace bond” to it’s logical conclusion, if a handful of people where to threat violence when say, Barack Obama was coming to town for a campaign stop. If Barack Obama showed up in town, then he could be assessed a “peace bond” or perhaps thrown in jail.

So what is the real difference here between what this guy is doing and that of the Westboro Baptist idiots that were allowed, by court mind you, to protest at funerals? In my opinion if it was my son I was burying there WOULD be violence towards them. Is that not the same thing here. Ahh I see, mooslims are involved so lets all be as PC as possible and cater to these evil people…

It is quite clear that Western Society should be, for the most part, doing a tit-for-tat scenario with Islam, until Islam behaves itself.

All “patience” has gotten us is more outrages, more claims for subservience from Islam directed at The West, and a foolish impression of equality on the part of a barbaric and pernicious meme’s followers.

We need to start deliberately offending Muslims.

I doubt if Jones and his followers grasp WHY they are doing The Right Thing, but regardless of reasoning leading up to it, they have, in fact, FOUND the right action:
Step on Islam’s toes until they apologize for having big feet.

The situation with Islam is basically a straitforward example of the Iterated Prisoner’s Dilemma

It is quite clear that Western Society should be, for the most part, doing a tit-for-tat scenario with Islam, until Islam behaves itself.

All “patience” has gotten us is more outrages, more claims for subservience from Islam directed at The West, and a foolish impression of equality on the part of a barbaric and pernicious meme’s followers.

We need to start deliberately offending Muslims.

Hmm. I’m not sure how much the Prisoner’s Dilemma actually models this aspect of international relations. Has anyone ever stopped being offensive because the object of their bile was sufficiently offensive in return? Are we trying to change the minds of the offensive Muslims, or trying to persuade new minds to be civil?

Also, tit-for-tat only works when all players are rational. Radical Islam is offensive because their religious beliefs compel them to be (we are unclean infidels who need to be crushed in accordance with Sharia, after all); I don’t think the incentive of Western civility will entice them to act contrary to such beliefs.

However, regardless of his personal failings he is doing that which must be done. He is bringing to light the failings of the political class and he is showing people, not just telling them, what is wrong in Islam.

Sometimes a saint lights your path. Right now, we have a man with all the failings and foibles of men. Shall we accept blindness and darkness because we don’t like the lampbearer?